Justice
Duarte Says Issue Was Not Whether the Trial Court Should ‘Bail Out’ Deputy PD
Who Failed To Investigate Defense Based on Mental Condition of Client, but
Protection of Defendant’s Rights

By a MetNews
Staff Writer

The Third
District Court of Appeal declared yesterday that a judge who realized during
trial that the defense lawyer had failed to investigate a possible defense
based on mental illness, but opted not to “bail out” the lawyer by granting a
continuance or a mistrial, neglected to protect the defendant’s rights.

Justice
Elena J. Duarte wrote the opinion reversing the conviction of Shayne Austin
Collins for residential burglary with an occupant present and other offenses.
The reversal was based on Shasta Superior Court Judge Thomas Smith’s denial of
a motion for a mistrial.

The
victim, Lisa Estess, is the defendant’s mother. She telephoned 911 three times
after Collins came to her trailer on Aug. 20, 2015.

Recordings
of the calls, lasting more than 20 minutes, capture the defendant ranting about
Satan and death—and about “Robert,” whose identity is unknown.

Lawyer Spots
Defense

Trial
began on Oct. 28, 2015 and the prosecution completed its case. The following
morning, the deputy public defender told Smith, outside the presence of the
jury, that she had talked with her client the night before and concluded he had
a possible defense based on an inability to form the specific intent required
for burglary.

She
said she had previously dismissed the significance of the 911 conversations,
thinking Collins might have been under the influence of methamphetamine.

Smith
responded that the recordings illuminated “from the very outset, the very
beginning of this case, that the defendant potentially could have a mental
defense of some sort; and it’s clear,” noting that Collins exhibited “very
bizarre behavior.” The judge said “it does not appear that this is like newly
discovered evidence that would warrant a continuance.”

The
deputy public defender—who is not identified—and her supervisor agreed that
there had been ineffective assistance of counsel based on a failure to seek a
psychiatric examination. Smith denied a mistrial, saying:

“It
is a close case; I’m the first to admit that. I guess the question is what is
the court’s duty to bail out defense counsel in the event that there may be an
incompetency of counsel.”

‘Rare
Circumstances’

Duarte
said, in an opinion that was not certified for publication:

“We
have listened to these recordings and agree that any reasonable criminal defense
attorney would immediately have understood this evidence raised serious
questions about defendant’s mental state, requiring investigation. But the
trial court characterized the issue it had to decide as whether or not it had a
duty to ‘bail out’ defense counsel, instead of protecting defendant’s right to
a fair trial, including the effective assistance of counsel. In these rare
circumstances, we find the trial court abused its discretion, and reverse with
directions to the trial court to grant the mistrial motion.”

The
jurist pointed out that there were three witness and all were local residents,
so it would not be difficult round them up for a retrial, and it would not be a
long trial. The prosecution had presented its case in less than a day, she noted.

While
those factors militated in favor of granting a mistrial, Duarte said, the
compelling factor is that the tapes “strongly suggest” that Collin “is
delusional” and a defense based on his mental state should have been
investigated.

No Contrivance

She
said in a footnote:

“We
understand that if any attorney could concoct a claim of ineffectiveness to
mistry a case when it was going poorly, the criminal justice system would grind
to a halt. But in the rare circumstances presented by this case, a
mistrial was clearly the proper remedy to protect defendant’s right to a fair
trial. Here, there was no improper tactical ploy by counsel. Instead, she
learned she had made a mistake, she promptly advised her supervisor, confessed
the mistake to the trial court, and sought an appropriate remedy on behalf of
her client. While this does not excuse her mistake, it belies any inference
that she manufactured it for tactical reasons.”

The
opinion notes that, as required by a Business & Professions Code section, the
State Bar would be informed of the reversal based on “incompetent
representation.”